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Illusion of Judicial Objectivity

Daniel Real and Judge John Irwin have posted their article, “Unconscious Influences on Judicial Decision-Making: The Illusion of Objectivity” (McGeorge Law Review, Vol. 43, 2010) on SSRN. Here’s the abstract.

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Judicial decision making is influenced by unconscious decisions and motivations – implicit biases. This paper explores how implicit bias impacts judicial decision-making, as well as considerations for minimizing negative impacts of implicit bias.

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Here is the article’s preview.

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Most people, especially members of the judiciary, strive to make decisions that are correct, fair, ethical, and that are free from the influence of biases and prejudices. For members of the judiciary, the very notion of impartial decisionmaking is codified in the Judicial Code of Conduct. It is in the very nature of being a judge to be an impartial and unbiased arbiter of the cases presented to the court for disposition. Most judges expend significant energy and thought consciously avoiding personal biases and prejudices in the decision-makingprocess.

When considering biases and prejudices that influence decision-making, what most readily comes to mind is conscious bias and prejudice. But in recent years the subject of implicit bias—unconscious or subconscious influences on decision-making—has reemerged in a variety of psychological and social science venues and has potentially significant ramifications in judicial decision-making. This paper introduces the concept of implicit bias in useful terms and then points the reader to deeper and more nuanced discussions of the subject and its ramifications across the social science spectrum. This paper will then consider some aspects of implicit bias’ role in judicial decision-making, both in terms of quick, heat-of-trial decisions (known as “blinking”) and in terms of carefully considered and weighed decisions (known as “staring”). Finally, this paper proposes some avenues of thought for future consideration about implicit bias’ potential influences and possible steps toward minimizing whatever harmful effects it might have on judicial decision-making.